AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON GUN VIOLENCE
COMMISSION ON DISABILITY RIGHTS
CIVIL RIGHTS AND SOCIAL JUSTICE SECTION
CRIMINAL JUSTICE SECTION
COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE
COMMISSION ON SEXUAL ORIENTATION AND GENDER IDENTITY
REPORT TO THE HOUSE OF DELEGATES
RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to reduce potential harm that individuals may inflict on themselves or others by enacting statutes, rules, or regulations allowing individuals to temporarily prevent themselves from purchasing firearms. Such measures should include, at minimum, the following provisions that:
1. any person may voluntarily and confidentially request that their own name be added to the Index of the National Instant Criminal Background Check System, an equivalent state background system, or to both, to prevent future firearms purchases;
2. the statute, rule, or regulation provide a procedure with appropriate safeguards whereby the person may have their name removed and such record deleted from the System; and
3. the statute, rule, or regulation provide appropriate safeguards to reasonably ensure that persons who request inclusion or removal from the System do not face stigma, discrimination, or any adverse action, and are entitled to confidentiality so that the fact that the person prohibited from purchasing a firearm is only disclosed when a valid background check is done.
Suicide is a public health crisis.
Although mental health conditions are often perceived as the cause of suicide,In fact, , compared to Among both individuals with and without known mental health conditions, many factors contribute to suicide. .
In 2016, 51 percent of all suicides (2,348 of 4,575 deaths) for males aged 15 to 24 involved firearms.
Nearly three-quarters of all suicides among females aged 15 to 24 involved either suffocation (509 of 1,148 deaths or 44%) or firearms (335 deaths or 29%). Among females aged 25 to 44, 32 percent (1,035 of 3,215 deaths) involved firearms, 31 percent suffocation (1,004 deaths), and 28 percent poisoning (887 deaths).
Firearms are a particularly lethal means of attempting suicide, with, compared to . Thus, a persuasive argument can be made that because individuals who attempt suicide with a gun rarely get a chance to reconsider their decisions, when guns are less available, fewer suicide attempts will result in fatality, more people will have the chance to reconsider their decisions, and
II. Need for Resolution
Giving individuals who believe they might be at risk for firearm suicide—whether they are struggling with life events, have a mental illness, or experience suicidal ideation—. This conclusion is based on three well-established clinical and epidemiologic observations. First, many suicides are impulsive. Seventy percent of people who made near-lethal suicide . Second, suicidal crises are often precipitated by an immediate stressor (e.g., breakup of a romantic relationship, loss or job), so that . Third, the great majority of individuals who survive a suicide attempt
Similarly, giving individuals who believe they might be at risk for harming others the opportunity to voluntarily put themselves on a no-gun registry—may save lives as well..
This resolution urges “federal, state, local, territorial, and tribal governments to reduce potential harm that individuals may inflict on themselves or others by enacting statutes, rules, or regulations allowing individuals to temporarily prevent themselves from purchasing firearms.” Any person would be able to voluntarily and confidentially request that their own name be added to the Index of the National Instant Criminal Background Check System (NICS), an equivalent state background system, or to both, to prevent future firearms purchases. The idea behind the no-gun registry is to allow these individuals to prepare for potential crises before they occur.
This option would appeal to individuals who have suicidal ideations, whether due to relationship, substance abuse, physical or mental health, job or financial, criminal legal, or anger management problems, among other reasons.Further, in an . Some of these individuals may be at high risk for suicide (for all the reasons outlined above or for other reasons), but others may not be.
III. Do-Not-Sell List
The essential attributes of a do-not-sell list are a voluntary and confidential way to suspend one’s ability to purchase firearms. The second element is a mechanism, with adequate safeguards, for changing one’s mind and regaining the ability to purchase firearms.
The list could work as follows. An individual 18 years of age or older would request that their name be added to NICS, an equivalent (also secure) state background system, or to both, to prevent future firearms purchases from a licensed dealer. The signup process—whether by mail or email—would be voluntary and confidential and require identity verification. Implementation could vary, but examples of identity verification include notarization or electronic notarization. The interface would explain in plain language that the registrant may be temporarily waiving Second Amendment rights. The registrant could later request that their name be removed from the index and/or system. Three weeks after the request for removal, their name would be removed and all records of the transaction deleted. The 21-day delay period is to allow for adequate deliberation.
Note that only an individual can put himself or herself on a list. A person who has legal authority to make decisions for the individual, whether through a guardianship, durable power of attorney, or other means, cannot put the individual on the list.
At the time of registration, registrants would have the option of communicating their waiver of gun rights to others by providing their email addresses. The registry would then alert addressees that the registrant has waived their Second Amendment rights, as well as if the registrant later rescinds their waiver.
Registration prevents purchase only. Registrants who are later found to be in possession of a firearm would not be subject to criminal prosecution. The Do-Not-Sell List is designed to prevent impulsive gun suicide and violence toward others, not to be a broader gun control measure. The List is prophylactic, not punitive. If an individual signed up but later obtained a firearm without a background check, that individual would not be criminally liable. Limiting easy access to firearms is the goal, not punishing individuals who, perhaps in a suicidal crisis, manage to get their hands on guns from other sources.
IV. Support for the Voluntary Do-Not-Sell List
Washington citizens can add their names to a do-not-sell list, suspending their ability to buy guns from licensed dealers. Registrants may provide an alternate person to be contacted if they revoke the voluntary waiver. Registrants who do so need only make the request and wait seven days. The law requires in-person registration and withdrawal. Participants have the option of designating a third-party contact to be notified “if a voluntary waiver of firearm rights is revoked.” The law has confidentiality protections, including a prohibition on discrimination based on one’s participation in the program.
Legislators in Alabama, California, Massachusetts, Tennessee, and Wisconsin have introduced similar bills.would allow individuals to voluntarily be added to the Voluntary Alabama Firearms Do Not Sell List via a secure Internet-based platform. Upon registering, receipt of a firearm by that person is unlawful. The registering individual’s information is reflected in the NICS Index Denied Persons File for Alabama. A registrant can submit email addresses of personal contacts to notify and advise that the registrant has added their name to the list or seeks to rescind their registration.
Registrants can request that their name be removed from the list at any time, and removal would take place automatically 21 days after the request. Upon removal, all records of the registration, associated transactions, and the request for removal are destroyed. The bill makes it unlawful for any person to inquire as to whether an individual is on the list or has requested to be added to or removed from the list for purposes of employment, education, housing, insurance, governmental benefits, or contracting. It is also unlawful to take any adverse action associated with those purposes or health care purposes based on an individual’s registration with the list. Violations give rise to a private civil action.
directs the state’ department of justice to “study options for allowing a person to register himself or herself on a list or database that prohibits the person from being able to purchase a firearm. The department shall recommend an approach to allow a person to prohibit himself or herself from purchasing a firearm.”
would require the Tennessee Bureau of Investigation (TBI) to develop and launch a secure internet-based platform that allows any person in the United States to register to add their own name to the Tennessee Do Not Sell List. This information is reflected in the NICS Index and conveyed to any other state that adopts an analogous “Do Not Sell List.” A person can subsequently request that their name be removed from the registry and wait 21 days for removal. Following removal from the registry, TBI must notify any other participating state registries to and purge all records related to the registration process. Whether a person is on the list or has requested removal is confidential with respect to matters involving employment, education, housing, insurance, government benefits, and contracting, and registrants can bring a private civil action for breaches of confidentiality.
The Massachusetts and Wisconsin bills would also allow voluntary suspension of gun purchase ability. However, those two bills differ from the Do Not Sell List model in several significant respects, including more onerous removal provisions.
V. ABA Policy
The American Bar Association (ABA) has a longstanding tradition of being at the forefront of policymaking to curb gun deaths. For instance, in 2017 the ABA passed policy urging “state, local, territorial, and tribal governments to enact statutes, rules, or regulations authorizing courts to issue gun violence restraining orders, including ex parte orders,” that includeCalifornia, Connecticut, Indiana, and Washington have enacted laws . In fact, a 2016 study of the Connecticut Gun Violence Restraining Order statute estimates that .
Also, in 2012 the ABA adopted policy opposing “governmental actions and policies that limit the rights of physicians and other health care providers to inquire of their patients whether they possess guns and how they are secured in the home or to counsel their patients about the dangers of guns in the home and safe practices to avoid thoseHealth care practitioners play a key role in counseling patients about the risks of injuries and best practices to minimize those risks a . The Centers for Disease Control and Prevention (CDC) highlight the important role health care systems can play in providing high-quality, ongoing care . There is widespread agreement that good medical care includes conversations about the safe storage of firearms, as responsible storage can prevent suicide by children and teens. A majority of adults in the United States, including gun owners, believe it is appropriate for physicians to talk to their patients about firearms.
Further, in 2011 the ABA enacted policy urging “applicable governmental entities to take all appropriate measures to ensure that the National Criminal Instant Background Check System (NICS) is as complete and accurate as possible, so that
This proposed resolution builds on the current policies, seeking to curb firearm suicide deaths by allowing individuals to voluntarily restrict their own access to firearms.
VI. Low-Cost Implementation
The cost-per-life-saved of this proposal would be very low. The federal background check system (NICS) has been granted its requested appropriation and is operational. All licensed gun dealers are already required to check the confidential federal database before selling a firearm. All that is needed to implement the proposal at the federal level is a mechanism for securely adding and subtracting names. After an initial start-up investment, the process could be more or less automated.
Implementation at the state level would also be cost-effective. The federal background check system allows states to add to the federal database the names of individuals who are barred from purchasing a firearm by state law but not federal law.Each state has control over its own state disqualifier database in NICS, so states could implement the proposal without relying on FBI processes or formal NICS appeal procedures.
Of course, people must know about the program in order to take advantage of it. For example, the bill introduced and passed out of committee in Alabama provides for “publicity and advertising campaign . . . that at a minimum provides the public with information about the list, how an individual may register to be added to the list, and contacts for additional information regarding the list.”
VII. The Proposal Would Not Violate the Second Amendment
The Second Amendment case closest on the facts to the proposal isPlaintiffs in Silvester argued that California’s 10-day waiting period to purchase a firearm violated the Second Amendment. The Ninth Circuit rejected that argument, ruling that the waiting period imposed a burden on Second Amendment rights, but . The court held that the waiting period
Based on Silvester, one can persuasively argue that restricting an individual’s own ability to purchase a firearm with an automatic, but delayed revocation option is functionally equivalent to a self-imposed waiting period. If a mandatory waiting period does not violate the Second Amendment, as Silvester squarely holds, then neither does a less restrictive, optional waiting period.
The next closest line of cases involves firearm restrictions based on dangerousness.An optional and temporary measure is less restrictive than a mandatory restriction premised on someone else’s judgment that the restricted party is “dangerous.” In other words, the proposal’s constitutionality follows a fortiori from the constitutionality of waiting periods and dangerousness restrictions.
A third argument in favor of constitutionality rests on the proposition that “the Second Amendment’s guarantee of an individual right to keep or bear arms in self-defense.” Firearm self-restriction would provide a tool to strengthen this right not to bear arms—by binding oneself against impulsively buying arms in the future. The animating One ought to be able to .
Finally, an individual who restricts their own ability to purchase firearms generally waives their Second Amendment rights. Waivers of constitutional rights “” Sign-up systems should include clear and prominent explanations that the individual is waiving such rights.
This resolution will further existing ABA policy aimed at curbing firearm deaths by focusing on suicide, which comprises nearly two-thirds of all firearm deaths in the United States. Giving individuals who are at risk of suicide the opportunity to voluntarily prohibit themselves from buying a firearm is a modest and inexpensive approach that could save lives. The ABA should advocate strongly for this legal step to combat this public health crisis.
Chair, Standing Committee on Gun Violence